DISCLAIMER:Gary Endelman practices immigration law at BP
Amoco Corporation. The opinions expressed in this column are purely personal
and do not represent the views or beliefs of BP Amoco Corporation in any
way.

As a veteran Trekkie who still hopes that Scottie will beam me up, I feel
at liberty to borrow the title of the last Star Trek movie, "The Undiscovered Country," to describe what
I see as a possible future for the H-1B. Truly, this is terra incognita
where no immigration voyager has gone before. What strikes one in the H-1B
debate is the extent to which it has been mechanistic, raising or lowering
the cap, to the virtual exclusion of all else. Are there other ideas that
can infuse this visa with the suppleness the economy demands while still
guarding against potential abuse? The answer lies not in more numbers or
less, but in a different kind of H-1B visa. Consider the following points:

1. Right now, the H-1B is possessed by galloping credentialitis. To degree or
not to degree? That truly is the only question the INS ever asks in any H-1B
case. Why? This all dates back to two venerable precedential decisions,
Matter of General Atomic and Matter of Essex Cryogenics, that jointly
established the concept of professionalism by virtue of a relevant degree.
Whatever the validity of such a concept decades ago when college attendance
was less than today, there is no logical reason why the INS now should make a college degree the exclusive focus of its inquiry. Does the person have a special talent? Do they show grit, inventiveness, self-discipline, an ability to adapt to different
cultural influences and a whole host of other character traits or skill
sets? Do they have the ability to solve important commercial or technical
problems ? Right now, the INS could not care less. No degree, end of story. A
formulaic view of H-1Bs ignores the fact that this is a visa that lives in
the real world and should be based on things that the real world
values. Education is one of those things.

2. The only reason to have the H-1B category, or any other employment-based visa,
is to benefit the US economy. The fact that someone has a relevant degree
may prepare them to do that and it is a factor that the INS should consider.
Yet, it is not the only or even the primary criteria that can or should be
used. In addition to education, fluency in English, age, specialized
expertise in a shortage occupation or one of high national importance are
all of equal or greater moment in determining what contribution the visa
applicant can render to the US. Until now, the advocates of a points system
have limited its application to the immigrant visa context. It can and
should be used to determine the allocation of H-1B visas as well. Throw out
the Kafkaesque forest of labor condition application compliance that, more
than anything else, threatens every living tree on the continent. Indeed,
scrapping DOL's LCA regime should be the Sierra Club's number 1 legislative
agenda. If we want to enrich the nation and create new sources of wealth,
something that really would help the very US workers DOL wants to protect,
then impose a points system to govern H-1B adjudication and let that decide
who wins and who loses. Take the data put out by the Bureau of Labor
Statistics, the Federal Reserve, and/or the Conference Board, to name a few
of many possible sources of information, and revise the criteria by which
the Service would rule on H-1Bs every fiscal quarter to guard against
ossification.

3. Rather than raising or lowering the H-1B cap, change its basic character.
Trust the economy that the H-1B should serve. The only cap that makes sense
is one that works in concert with, rather than in ignorance of, the market.
The best protection for US workers, indeed the only kind that really makes
sense, is to impose a market-based cap allowing the economy to decide how
many H-1Bs should come. That, more than any artificial limit picked out of
thin air, will work.

4. The Congress has endorsed the concept of H-1B portability but it has only
taken a few baby steps along this road. Let's take some giant ones. Why not
allow the H-1B alien to file the petition much as he or she can now file a
national interest waiver immigrant petition or an extraordinary ability
petition? The H-1B approval would then truly belong to the H-1B worker and
not to the employer who loses any leverage that the market would not
otherwise provide. Armed with such a weapon to guard against any unreasonable
employer demands, the H-1B alien has no need for the LCA shield. It becomes
irrelevant and all associated with it are liberated.

5. Institute a blanket H-1B procedure that is patterned after the blanket
L-1 intracompany transferee procedure. Indeed, the L-1B specialized knowledge
professional must have a relevant university degree to apply for the L visa
at a US Consulate under the blanket petition, so there is precedent here to
reassure us and point the way. If the INS and DOL are concerned about
H-1B musical chairs under the American Competitiveness in the 21st Century
Act, adoption of a blanket H in preference to the current system of H-1B
portability that depends upon proof of having made an INS filing has much to
recommend it. It is more expensive in some cases but also simpler, faster,
more secure in terms of forcing the new H employer to prove it can pay the
prevailing wage, and beneficial to the H-1B beneficiary by allowing him or
her to bypass the Service entirely. Why should not US Consulates be able to
issue H-1B visas in response to a direct application much as they issue
blanket L visas? Get rid of the LCA and this no longer prevents the
rational from being enacted into law.

None of this may happen and there are doubtless other ideas that make as
much or more sense. If we can turn our gaze away from the national
preoccupation with caps and numbers and roving employees and the whole host
of mind-numbing LCA lexicon that threatens to replace hanging chads as the
ultimate horror afflicting the national imagination, then the natural
creativity of the American people will assert itself. That would be nice.